This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP762-CR

Cir. Ct. No.2004CF1222

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

State of Wisconsin,

Plaintiff-Respondent,

v.

Daniel L. Wakefield,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Kenosha County:anthony
g. milisauskas, Judge.Affirmed.

Before
Brown, C.J., Neubauer, P.J., and Reilly, J.

¶1PER CURIAM. Daniel L. Wakefield appeals pro
se from a judgment of conviction and an order denying his motion for
postconviction relief.[1]He contends that (1) his prosecution was
barred by the six-year statute of limitations governing felony offenses, (2)
his trial counsel was ineffective, (3) he was entitled to counsel on appeal,
(4) he was unlawfully charged with multiple counts of the same crime, and (5)
he is entitled to a plea withdrawal due to a manifest injustice.We reject Wakefield’s claims and affirm the
judgment and order.

¶2On January 15, 2004, M.P. was sexually assaulted in her
home.She reported the assault the same
day and described the man who assaulted her as being “between 18 and 22 years
old.”Ultimately, biological samples
taken from M.P.’s bed sheet yielded a DNA profile of her assailant. The profile was entered into the Wisconsin DNA
Databank Casework Index and searched against multiple indices.The search did not produce a match at that
time.

¶3On November 8, 2004, the State filed a “John Doe” complaint and
warrant for arrest.The complaint
identified John Doe by a description of his DNA profile.The State charged him with one count of first-degree
sexual assault.It also charged him with
one count of armed burglary and one count of armed robbery for his actions of
entering M.P.’s home with a knife and taking money from her after the assault.

¶4Over five years later, the DNA databank produced a match
between John Doe’s DNA profile and Daniel Wakefield’s.After the match was verified, the State filed
an amended complaint on June 1, 2010, naming Wakefield as the defendant.Wakefield was born on September 18, 1988,
making him fifteen years old at the time of the original complaint and
twenty-one years old when the amended complaint was filed.

¶5Wakefield waived the preliminary hearing.Afterward, the State filed an information charging
him with five counts of first-degree sexual assault, one count of armed
burglary, and one count of armed robbery.All of the counts were based on the January 15, 2004 incident.

¶6Wakefield, by counsel, moved to dismiss the case.The motion maintained that the prosecution
was barred by the statute of limitations.It further maintained that because Wakefield was a juvenile when the
original complaint was filed, the circuit court lacked jurisdiction to try him
as an adult.Relatedly, the motion noted
that no hearing had been held pursuant to State v. Becker, 74 Wis. 2d
675, 247 N.W.2d 495 (1976).[2]

¶7The circuit court held a hearing on Wakefield’s motion to
dismiss.After considering the arguments
of counsel, the court concluded that the prosecution was timely commenced with
the filing of the original John Doe complaint.The court then conducted a Becker hearing to address
Wakefield’s remaining arguments.[3]

¶8At the Becker hearing, Kenosha County
Deputy District Attorney Mike Graveley testified for the State and addressed
why the original complaint was filed in adult court rather than juvenile court.
Graveley explained that when the case
was referred to the district attorney’s office, “all of the materials contained
within that file … indicated an individual between the ages of 18 and 22 years
old….”He further explained that the DNA
profile developed in the investigation “did not reveal a particular person’s
identity.”Moreover, Graveley said that
he was “not aware of any means in which [the State Crime Laboratory] can test
DNA and essentially age the person who provided the DNA.”Finally, Graveley noted that the DNA profile
developed was not identified as Wakefield’s until 2010.

¶9The circuit court found Graveley’s testimony to be credible
and concluded that the State’s prosecution of Wakefield was not delayed
manipulatively so as to avoid the juvenile justice system.Accordingly, the court denied Wakefield’s
motion to dismiss.

¶10Wakefield subsequently pled guilty to one count of first-degree
sexual assault and one count of armed burglary.The remaining charges against him were dismissed.

¶11Following sentencing, Wakefield filed a notice of intent to
pursue postconviction relief.Assistant
State Public Defender Donna Hintze was appointed to represent him on
appeal.Hintze later filed a motion to
withdraw as appellate counsel.The
motion indicated that Hintze had met with Wakefield and discussed with him his
appellate options.Wakefield told Hintze
that he wished to represent himself.Hintze advised Wakefield that his decision to represent himself and have
her withdraw was final and that her office would not appoint another
attorney.After receiving this explanation,
Wakefield reiterated his preference for self-representation.The circuit court granted Hintze’s motion to
withdraw.

¶12Proceeding pro se, Wakefield filed a postconviction motion in
the circuit court.That motion
reiterated the arguments made in the earlier motion to dismiss.Additionally, it raised new issues including
ineffective assistance of counsel, multiplicity, and plea withdrawal.

¶13Wakefield then moved this court for the appointment of new counsel
to assist him at the hearing on his postconviction motion.In response, we asked the Office of the State
Public Defender (SPD) to clarify the status of its representation in the
case.After it did so, we indicated that
we would not interfere with the SPD’s decision regarding the appointment of new
counsel.Moreover, because no appeal was
pending in our court, we declined to exercise our inherent authority to appoint
counsel.

¶14Ultimately, the circuit court held a hearing on Wakefield’s
postconviction motion and denied it.This appeal follows.

¶15On appeal, Wakefield first contends that his prosecution was
barred by the six-year statute of limitations governing felony offenses.Accordingly, he maintains that the circuit
court lacked personal jurisdiction over him.

¶16We conclude that Wakefield’s first argument is governed by State
v. Dabney, 2003 WI App 108, 264 Wis. 2d 843, 663 N.W.2d 366.In Dabney, this court examined whether a
John Doe complaint and arrest warrant identifying a defendant solely by a DNA
profile were sufficient to commence a criminal prosecution.Id., ¶9.Specifically, the court considered whether
such documents satisfied the requirements of particularity and reasonable
certainty.Id., ¶13.The court held that they did and determined that
such documents were “sufficient to confer personal jurisdiction.”Id., ¶¶15, 17, 18.Likewise, the court determined that the John
Doe complaint, which was filed before the statute of limitations expired, was
timely.Id., ¶21.

¶17Applying Dabney to the facts of this case, we
conclude that the criminal complaint and arrest warrant filed on November 8,
2004, which identified Wakefield solely by his DNA profile, were sufficient to
confer personal jurisdiction over Wakefield.We further conclude that the timely filed complaint and arrest warrant
satisfied the statute of limitations for Wakefield’s crimes.

¶18Wakefield next contends that his trial counsel was ineffective.Specifically, he complains that his trial
counsel permitted the State to prosecute him unlawfully after the statute of
limitations had expired for his crimes.

¶19Wakefield’s second argument fails for several reasons.To begin, it is insufficiently developed.SeeState
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992)
(appellate courts need not address inadequately developed arguments).Moreover, it fails on the merits because (1)
trial counsel moved to dismiss the case on statute of limitations grounds and
(2) Wakefield’s prosecution was not barred by the statute of limitations for
the reasons discussed above.

¶20Wakefield next contends that he was entitled to counsel on
appeal. He submits that he needed
counsel to review transcripts and bring all of his issues in this appeal.

¶21In considering this third argument, we do not dispute that Wakefield
was constitutionally entitled to be represented by counsel at public expense in
this appeal.SeeState v. Thornton, 2002 WI App 294, ¶13, 259 Wis. 2d 157,
656 N.W.2d 45.However, the record
makes clear that Wakefield knowingly, intelligently, and voluntarily waived
that right by dismissing Attorney Hintze and electing to represent
himself.As a result, we do not discuss
this issue further.

¶22Wakefield next contends that he was unlawfully charged with
multiple counts of the same crime.In
particular, he objects to the State charging him with five counts of first-degree
sexual assault.

¶23The issue of multiplicity arises when a defendant is charged in
more than one count for a single offense.State v. Ziegler, 2012 WI 73, ¶59, 342 Wis. 2d
256, 816 N.W.2d 238. The test to
determine whether multiple counts are permissible is first, whether the charges
are identical in law and fact, and second, whether the legislature intended to
allow more than one unit of prosecution.See State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d
329 (1998).If the offenses are
different in law or fact, then there is a presumption that the legislature
intended multiple punishments.Id.
at 751.The presumption may be rebutted
only by showing clear intent to the contrary.Id.

¶24Here, Wakefield was accused of five separate acts of forcible
sexual intercourse: two acts of
fellatio, and three acts of penis-vagina intercourse.The narrative portion of the amended criminal
complaint included the following allegations:

After [M.P.] took off her clothes, the man told [M.P.]
to “suck my dick.”The man lowered his
pants and [M.P.] complied with his demand.After approximately one minute, the man told [M.P.] to lay down.She lay down on her back and the man got on
the bed on top of her and proceeded to have penis to vagina intercourse with
[M.P.].[M.P.] stated she was crying and
hyperventilating.After a couple of
moments, the man got off [M.P.], laid down and made [M.P.] get on top of him
and had sexual intercourse again with her.The man then made [M.P.] masturbate him.The man then forced [M.P.] to get on top of him facing away from him and
had intercourse with her that way for several minutes.He then made [M.P.] masturbate him
again.The defendant then forced [M.P.]
to suck on his penis again and told her to “swallow the nut.”

¶25Reviewing these allegations, we are satisfied that the five counts
of first-degree sexual assault were not the same in fact.That is because each count was different in
nature and required a separate volitional act.SeeState v. Eisch,
96 Wis. 2d 25, 42, 291 N.W.2d 800 (1980) (multiple acts of sexual intercourse
that are different in kind may be separately charged although arising out of the
same assaultive episode).

¶26Turning to the second prong of the analysis, we begin with the
presumption that the legislature intended for multiple punishments for the
different offenses.Anderson, 219 Wis. 2d at 751.Because Wakefield makes no effort to
demonstrate that multiple punishments are contrary to legislative intent, we
conclude that he has failed to meet his burden of showing that the charges were
multiplicitous.Accordingly, we reject
his fourth argument.

¶27Finally, Wakefield contends that he is entitled to a plea
withdrawal due to a manifest injustice.According to Wakefield, he should be allowed to withdraw his plea
because he “did not know he was pleading to multiplicity counts that needed no
additional proof.”

¶28We conclude that Wakefield has not demonstrated that a manifest
injustice occurred.We have already
shown that the five counts of first degree sexual assault were not
multiplicitous. In reaching this determination,
we are satisfied that each count required proof of an additional fact not
required for proof of the other four, whether it included a different fact
about the physical contact involved or a different fact about Wakefield’s use
of force or threat to gain M.P.’s involuntary compliance with his wishes.As a result, we are not persuaded that
Wakefield is entitled to a plea withdrawal.

This opinion will not be
published.SeeWis. Stat. Rule
809.23(1)(b)5. (2011-12).

[1] Although
the notice of appeal cites only the judgment of conviction, both parties have
proceeded on the belief that Wakefield also appeals from the circuit court
order denying his motion for postconviction relief.Accordingly, we construe the notice of appeal
to include the order.

[2] In
State
v. Becker, 74 Wis. 2d 675, 678, 247 N.W.2d 495 (1976), our supreme
court held that before an adult defendant could be tried for an offense
committed before he was eighteen years of age where no juvenile proceedings
were instituted, the State was required to show at a hearing that the
prosecution was not delayed manipulatively so as to avoid the juvenile justice
system.

[3] In
his brief, Wakefield complains that he did not receive a Becker hearing.The record belies this assertion.

[4]To the extent we have not addressed an
argument raised by Wakefield on appeal, the argument is deemed rejected. SeeState
v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147
(1978) (“An appellate court is not a performing bear, required to dance to each
and every tune played on an appeal.”).